Haterz Gonna Hate?

Haterz Gonna Hate?

There are limits to what the law can do to police cyberabuse.

November 5, 2014

Like a surprisingly large proportion of Americans, I have a cyberstalker, whom I shall call S. “You know I hate you more than Aphrodite hates Helen,” S announced in his most recent e-mail. “If anyone hates you, it’s me.” A gifted, disturbed and drug-abusing former student, S slipped into paranoia almost three years ago, one fall night in 2011—I remember the shock of receiving about twenty obscene messages in a single hour. He has bombarded me with abusive, lewd and often threatening messages ever since—punctuated by periods in residential rehab, and by all-too-brief periods of lucidity thereafter. S is a gay Latino man, and the special nature of his paranoia is extreme hatred for the dominant white heterosexual academic world, which, he believes, has caused his drug addiction so that he won’t succeed. He has also created a kind of paranoia porn about the fantasized sexual organs of putative lovers or ex-lovers of mine, enraged that they have allegedly preferred a white woman to him (while glorifying those body parts, he includes denigration of female body parts, especially mine, in his rants). I have not replied to his messages since shortly after the break, when I advised him to seek psychiatric help, but I do read them to know how he is doing. He is not doing well. S used to be gifted, sweet and funny. (You can almost glimpse the old S, with his joke about Aphrodite.) Now he is not sweet and rarely funny.

Because the threats might be real, and because in any case S would very likely attend any public lecture I would give in his home city, C (he comments on my whereabouts in his e-mails and seems well informed), and probably cause a disturbance, I do not give public lectures in that city. (I don’t mind this. It is pleasing to have a clear excuse to say no to some invitations.) I have given all of his e-mails and his photo to officials at the University of Chicago, where I am a professor, but I have not involved the police, feeling that the Chicago police would not be interested in a perpetrator far away in C, and that the police in C would not be interested in protecting me here in Chicago. Besides, I feel safe, as S has no money and thus cannot travel. But also, I think S is suicidal, and I do not want to precipitate a tragedy. His e-mails do not alarm me (after the initial shock); they do make me very sad.

In discussing my S situation, I’ve discovered that many people have comparable cyberstalker problems. (My case is unusual only in that, unlike many women with cyberstalkers, I don’t write for blogs or use any social media, so S’s activities are confined to e-mailing me and, at times, cc’ing others.) Such problems are rarely reported to law enforcement, even when the threats are much more severe and disabling than mine, because victims are ignorant of the law or believe, often correctly, that the law is not likely to help them. If the incidents are reported, the police themselves often don’t know the law, and tend to tell victims to go away and tough it out.

In Hate Crimes in Cyberspace, Danielle Keats Citron aims to change that situation, giving readers a sense of the scope and seriousness of the problem of cyberstalking and harassment; an account of existing law, both state and federal; and a set of thoughtful and persuasive proposals for improving both law and law enforcement. The book was preceded by Citron’s valuable contribution to a volume edited by me and Saul Levmore, The Offensive Internet: Speech, Privacy, and Reputation (2010), and by a series of law-review articles; but Citron, a professor at the University of Maryland’s Francis King Carey School of Law, does not rest on her laurels. Hate Crimes in Cyberspace is far broader in scope and more nuanced and wiser in its recommendations than the arrestingly bold article in the anthology, which survives as the basis for a chapter on cyberharassment as civil-rights violation. Vividly written and carefully argued, the book is a fine account of law in this area, even though legal discussions do not take us to the root of the problem.

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Citron introduces three real-life cases, schematically simplified, that convey the range and variety of cyberabuse. All involve women, and Citron cites data showing that a large proportion of cyberharassment involves female victims and male perpetrators (though because of underreporting, reliable data are hard to come by). A female tech blogger suddenly found herself the victim of obscene and threatening attacks by a “cyber-mob” instigated by the notorious Internet troll “weev,” and the resulting fear led her to withdraw from blogging, a major part of her career. A female law student was among the many who were targeted by name and subjected to pornographic descriptions of their alleged sexual activities on the website AutoAdmit, which was created as a forum for law students and applicants but quickly degenerated when male law students began using it to abuse their female peers. The resulting Internet exposure impaired the law student’s employment opportunities: a Google search of her name still pulls up the offending posts. A third woman was targeted for revenge by an ex-lover with whom she had entrusted nude photos. He posted these on a revenge-porn site along with her e-mail and a link to her work address, of course without her consent; she subsequently received hundreds of lewd and frightening messages from men who “could not wait to have sex with her.” To these three cases I shall add that of S, as it is less schematic and messier, and it gives me a chance to raise questions about causation that the schematic anecdotes do not.

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Why are these serious abuses so rarely taken seriously by law enforcement? Citron finds that a tendency to blame the victim infects much discussion of cyberharassment, as it previously had infected discussions of sexual harassment in the workplace. Then, women were told that being approached for sexual favors was simply a part of life, and they should just learn to deal with it; now, the victims of Internet abuse are told that they should not be so sensitive, should just ignore it or, indeed, should understand that this is what the Internet is like. Citron is quite right to say that this response to workplace sexual harassment was a mistake; we now understand the serious harm that it does, and the fact that it is a form of sex discrimination. And she is also right to say that many cases of Internet harassment do pose real risks to life and safety, to employment opportunities and to emotional well-being.

Still, I want to quibble with her just a little, using my case. I could have let the S situation take over my life, spread anxiety into my days and nights; I could have let the search for remedies take time that would otherwise be used for more useful and pleasant pursuits. Many people, hearing my story, expect me to do so, and seem aghast that I did not. But actually, the situation does not bother me. It was indeed a horrible shock that first night, when, lying in bed checking my e-mail, I saw that barrage of obscene messages, one after another. But one does have to figure out whether there is anything to be anxious about, and if so, what. I looked at the case, judged exactly where real danger might lie and opted out of those situations. Beyond that, I went about my life.

I can say this because I am not suffering reputational damage from S, even when he cc’s other people on his e-mails, because I am in a position of power and because his pathology is so evident. Even were S to post his rants on blogs or other searchable media, they probably would not get to the first page on a Google search of my name, because I have other forms of Internet presence. Nor does S affect my employment or professional activities. I am lucky, then, in a way that others are not. Third parties do not judge me based on S’s portrait of me, and I choose not to obsess over behavior that is bad but does not pose a continued threat. The same would be true of a mugging or a burglary: both are serious crimes, and you can allow your life to be ruined by them, or you can move beyond them. We do have a degree of choice. Most perpetrators are pathetic and weak, and one cedes them a huge amount of power if one makes the abuse a defining life event.

Citron’s lucid discussion of the three cases makes clear that we must distinguish situations where abuse does not constitute a real threat to one’s safety or career from cases where it does. Social media has a tendency to amplify emotional reactions to a counterproductive extreme. If we decide that all women who suffer even mild abuse are “survivors” rather than victims, we minimize the real dangers many women face and also perpetuate the common view that all abuse is bad but bearable, and women should just get over it. Furthermore, collapsing distinctions between different types and degrees of abuse may impede the ability of women who are in serious danger or whose careers are in jeopardy to get the legal recourse they need.

We should, as Citron argues, reject the facile romanticization of the Internet as the last frontier of true freedom. We should acknowledge that the Internet both facilitates expression and silences, both allows speech and muzzles it. We should acknowledge that the Internet does create special problems, as Googling someone has become a primary way that we learn about a person’s identity. Law should help people deal with this problem. But without at all trivializing Internet abuse or the emotional trauma it may cause, or stopping the search for better laws to deal with it, and without suggesting that the bad behavior is the victim’s fault, we should also point out that Internet abuse, even obscene and scurrilous abuse, is a fact of today’s life, just as breakup and divorce are facts of today’s life. Sexual harassment in the workplace can and should end. But the Internet is a universe and not a finite workplace, and abuse there will never stop, as there will always be more willing perpetrators.

What features of the Internet, then, make abuse so prevalent? In an insightful if somewhat discouraging chapter, Citron argues that the very features that facilitate abuse also encourage valuable behavior, and so should not be drastically changed. Anonymity allows people to spew venom without accountability; but it also allows gay teenagers to explore their identity, political dissidents to network and organize without fear of reprisal, and so on. Physical separation between speech and speaker emboldens haters, but it also emboldens fearful minorities. Malign cybermobs coalesce easily on the Internet, but the web also creates ways for marginalized groups to network, organize and disseminate valuable information. The propensity of Internet users toward what is known as “group polarization”—members of a group egg one another on, until the resulting view of the group is more extreme than that of the initial discussion—is paralleled by a propensity for “informational cascades” (the more something is said, the more people believe it), which can help establish truth as well as falsehood. For example, as people learn from one another about the harms of racism, they often become more polarized against it. The legal and social challenge, then, is to find ways of dealing with truly harmful abuse without chilling a significant proportion of the Internet’s valuable activities.

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The major contribution of Citron’s book is its lucid summary of the vast network of laws, both state and federal, that are pertinent to cyberabuse. As she shows, we can do quite a lot for victims of cyberabuse without chilling expression—but only if we enforce existing law well, and ensure that any new laws are narrow and precisely drafted, containing clear definitions of the crimes involved.

Citron turns first to civil law, where there are torts that might potentially help victims of cyberharassment: defamation, invasion of privacy and intentional infliction of emotional distress. Defamation does not help most victims, as much abuse has no factual content. Internet anonymity, moreover, makes it difficult to locate the appropriate person to sue, as the law students discovered: of the nearly forty posters responsible for the abuse, only seven were identified. But the lawsuit against those seven went forward (with pro bono assistance from high-profile experts, without which it would have been prohibitively expensive) and was eventually settled. Citron believes that in some but not all cases, site administrators ought to ask for the posters’ real names and addresses, and she also believes that curtailing anonymity will undermine useful features of Internet expression. (She’s convinced me, although I did not hold that view before.)

Another problem with anonymity concerns plaintiffs: the law student was permitted to sue under a pseudonym, but this is generally not allowed—and where it is not permitted, suing can increase the abuse. Citron strongly recommends reform here: people should be able to sue without further victimizing themselves by publicizing their status as victims. She also has useful ideas about how to shape the tort of invasion of privacy so as to recognize revenge porn. The public tends to think that if a woman has given a nude photo to a lover, then he can use it as he pleases; but permission, she argues, is contextual. Giving photographs to a lover does not confer permission for him to publicize them to the world.

I believe that bringing suit for defamation or intentional infliction of emotional distress is usually a mistake, given the costs of litigation, both financial and emotional, and the great difficulty of winning when the claim concerns sexual behavior or other personal matters. (How grotesque it would be were I to sue S, although he has undoubtedly said many defamatory things among the thousands of things he has said. It would be hugely expensive; it would focus my attention on S, whereas now I rarely think of him; and it would be unpleasant and possibly dangerous for him, given his vulnerability.) The other torts are similarly difficult to pursue and unlikely to provide satisfactory outcomes for the victims. How, for example, does one establish intent in Internet mob behavior?

Given the limited usefulness of civil law, Citron next turns her attention to criminal law. Threats of bodily harm may be crimes under state laws according to some very narrow conditions. Typically, the threat must be “unequivocal, unconditional, and specific,” and the victim must feel “tangible, sustained, and immediate fear.” Few Internet threats will meet these conditions (certainly none of S’s do, as they are quite vague, and I am not afraid of him). Stalking and harassment laws are more promising avenues for victims. State laws typically define stalking as “threats made with intent to place another person in imminent fear of grave bodily injury in connection with a malicious ‘course of conduct’ that would cause a reasonable person to suffer substantial emotional distress.” Harassment is typically defined as “a willful and malicious ‘course of conduct’ directed at a person that would cause a reasonable person to suffer substantial emotional distress and that does cause the person to suffer distress.” Many victims’ injuries meet this description, and I suppose that S is guilty of harassment so defined. Most states have updated their laws to keep pace with the Internet era, but they have done so unevenly. Many statutes, for example, cover only abuse communicated directly to victims by e-mail. Citron recommends reforms that would make these laws broader in their coverage while retaining specificity.

Sometimes invasion of privacy can be addressed through criminal law, as in a New Jersey statute that Citron favors: the one under which Rutgers University student Dharun Ravi was convicted for the harassment that precipitated the suicide of his roommate Tyler Clementi. (Ravi set up a webcam in order to spy on Clementi, who was gay, while he was entertaining a male visitor.) Citron is appropriately concerned that laws targeting revenge porn might criminalize some valuable speech, so she recommends that statutes be very precise, and actually proposes an admirable model statute herself, complete with clear definitions of “disclosure,” “harm,” “image,” “intimate parts” and “sexual act.”

But, of course, the Internet crosses state lines, and federal stalking and harassment laws capture a wide range of online abuse. Section 2261A, the interstate stalking statute, makes it a felony to use any “interactive computer service or electronic communication service or electronic communication system” to “engage in a course of conduct” with intent to harass or intimidate. The section covers substantial emotional distress as well as fear of bodily injury. Section 223, the telecommunications harassment statute, makes it a misdemeanor to directly harass or threaten someone over interstate communications networks. I suppose S has violated both of these sections, and, interestingly, no university officials (whether in the office of legal counsel or the university police) ever mentioned this to me, confirming Citron’s contention that law-enforcement officers and practicing lawyers are generally ignorant of the law in this area. Laws forbidding identity theft may also be invoked when stalkers publish Social Security numbers. And in some cases, the abuse may involve extortion.

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Citron’s most original suggestion is that civil-rights laws also have a role to play, when individuals suffer interference with important life opportunities because of their group membership. A large proportion of Internet harassment is misogynistic, and insults based on race, sexual orientation and religion are also pervasive. Citron notes that both state and federal law punish harassment or threats motivated by race, national origin or religion, but only a few states forbid (as a civil-rights matter) harassment based on gender or sexual orientation. She recommends reform in these areas, and also that civil-rights laws be enforced in cases of online abuse. She argues that using civil-rights laws would deter a lot of bad behavior and also reshape social attitudes toward online abuse: we would come to see it not as mere unpleasantness but as wrongful discrimination.

This proposal is compelling, but questions remain. Again, and as Citron acknowledges, it’s much harder to establish discriminatory intent online than in a regular employment situation. Title VII, the source for our modern law of sexual harassment, had to evolve through judicial interpretation until, by now, we have useful formulations for two distinct types of harassment: “quid pro quo” and “hostile work environment.” The former (demanding sexual favors in exchange for favorable treatment) has no obvious application to the online world, while the latter is very difficult to apply there. We have gradually come to understand what makes a workplace a “hostile environment” for women; but because the Internet is everywhere, it is not clear how to argue that one person’s abuse, in that vast universe, creates a hostile (discriminatory) working environment. And the basis of a given case of harassment is often extremely slippery. For example, is S targeting me because of my gender? Yes and no. How would the relevant intention be established? His rants are highly misogynistic, but they also express a kind of reverse resentment of me as a member of a dominant group that allegedly oppresses him. In a regular workplace, we have ways of resolving this question. In the online world, we’re just at the beginning, and for those whose workplace is the Internet itself, legal clarity is especially urgent.

It has long been a gripe of scholars concerned with online abuse that Section 230 of the federal Communications Decency Act immunizes both website operators and service providers from legal liability for the content they host. In The Offensive Internet, most of our contributors recommended repeal of that section. Citron is at her best in her nuanced discussion of this question. She points out that the section originated, in fact, in an attempt to encourage these actors to remove offensive content. The status quo ante was that if they did not exercise editorial control, they would face no liability; but if they intervened at all as editors, then they could be held liable—so they opted to do nothing. Congress believed that the best way to encourage editorial control was to confer broad immunity to Internet service providers, search engines and site operators. Seen in its original context, this safe harbor had its merits.

By now, however, we’ve seen the problems caused by immunity. We should distinguish service providers (e.g., Google) from site operators, for whom a sensible regulator might propose requiring real names and e-mail addresses (as did many in our volume). Citron points out that even under current law, site operators have immunity only for the content created by others, not for what they co-create, so some sites devoted to revenge porn may not be immune (extortion sites may also forfeit immunity). Citron’s cautious proposal is to add to the list of exceptions, amending the section to exclude from immunity “any website or other content host that purposefully encourages cyber stalking or nonconsensual pornography and seeks financial remuneration from its removal or that principally hosts cyber stalking or nonconsensual pornography.” Though I previously supported a total repeal of the section, I think her idea is better. Citron’s argument against total repeal is that distributor liability will lead to a great deal of self-censorship. If, for example, site operators were to require real names and e-mail addresses, speech would likely be chilled through self-censorship on many sites dealing with politics or sexuality (as when gay teens network to discuss their feelings). If the real-name position were adopted, strong privacy protections would need to be devised, so that the site operator would be required to respect privacy unless faced with a subpoena. But would even that guarantee reassure a closeted gay teen? I doubt it.

Citron confronts the perpetual free-speech/First Amendment problems attendant to her family of proposals head-on, and the case she makes is persuasive. She notes that current law already excludes from First Amendment protection certain narrowly drawn categories of speech, such as defamation, true threats, obscenity and the speech component of sexual and racial harassment, and her own narrowly drafted proposals work within that legal framework and do not penalize new categories of speech. She’s right to remind us of the accepted limitations of First Amendment protection. Nobody is really a free-speech absolutist: bribery, perjury, criminal solicitation, extortion and the other types of speech I’ve mentioned are not supported even by zealous speech libertarians. More to the point, US constitutional law is not absolutist, and sensible proposals of Citron’s sort are no threat to cherished values.

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Citron makes a number of useful proposals for legal reform while convincing readers of the seriousness of the problem. But still, one wonders, why is this crime epidemic? Why, given all the things the Internet facilitates, has hatred—particularly misogynistic hatred—become such a significant part of online activity? It is difficult to know how large the problem is: cyberstalking and harassment are surely far more underreported even than rape and domestic violence. But the evidence we have suggests that the problem is vast. The minute I mention not lecturing in C because of S, I’m almost sure to hear, if I am speaking with a woman: “Oh, yes, I have this stalker who…”

Perhaps the first question one should pose is whether “hatred” is really the right rubric. Cases involve quite a lot of different motivations. The ex-lover wanted revenge, which is not exactly the same thing as hatred, but at least it lies close. The law students on AutoAdmit probably were motivated by a mixture of anxiety and envy, given that they targeted highly successful female law students at a time when women are posing new competitive challenges to young men. And S? Well, I suppose I’d have to mention fear first, but also envy, love, emulation and despair. So the real question is: Why do so many different cases produce aggressive male outbursts directed at women?

Citron is insightful in her discussion of the structures of the Internet that make it especially fertile ground for stalkers and harassers, and she rightly argues that parents’ ignorance and lack of involvement in their children’s Internet lives make the problem worse. Nothing she says, however, explains why the harassment is so often misogynistic. We need to look at how our culture forms attitudes toward sex and gender (an inquiry that is beyond the scope of Citron’s closely focused legal analysis, and one that she wisely avoids). Psychologists working with troubled adolescent males (I think in particular of the impressive work of Dan Kindlon and Michael Thompson) find that our highly competitive society produces a gendered “culture of cruelty” in which young males, unwilling to admit weakness or fear, are driven by their peers to act out dominance in many pernicious forms. One prominent casualty is their relationships with women. Boy culture stigmatizes empathy and tenderness and valorizes, as Kindlon and Thompson put it, “power, dominance, and denial of sensitivity.” When women are not only objects of sexual desire but also competitors for jobs, law-school admissions and so forth, the result can be a potent and toxic brew of sexualized aggression in young men. Anonymity, the possibility of real-world effects with no accountability, and the easy creation of online mobs allow males to act out, often with expectations of utter security.

To effect real change, then, we need to reshape the background culture of maleness, which, unlike the structures of the Internet, does not have value that we should try to preserve—or, at least, the valuable characteristics traditionally identified with masculinity (physical strength and bravery, reliability) are not the same characteristics that cause the problem. But changing gender norms is an epic task, requiring the cooperation of parents, teachers, and concerned men and women of all ages. And though he is gay, my S is certainly still male. He has suffered from the culture of maleness in that he has been stigmatized and made to feel shame about his sexuality, which is a major feature of his obsession. But he was also raised as a (dominant) male, and I will hazard a guess that his apparently boundless sense of entitlement to abuse women (including not just me but, in his messages to me, other female professors and, prominently, his mother) as well as his evident if atypical misogyny come from his internalization of society’s devaluation of him as gay, but also from its exaltation of him as male.

There is, however, something else that is pertinent to the case of S, and many others. S has for years abused Adderall. He was told to take it early in life, for alleged attention-deficit problems, and he came gradually to believe that he could not think or function without it. As life made more and more competitive demands on him, he took more and more of it, and doctors always gave it to him.

S is part of a massive problem—the overprescription of stimulants in our society—that begins in elementary school (and even before) and is focused on boys. Parents are often pressured by teachers or administrators with no medical expertise to medicate their children in order to keep them in the classroom. By high school, nearly 20 percent of boys are diagnosed with an attention disorder. And prescriptions for young adults are growing at an even faster rate: 14 million twenty and thirty-somethings were prescribed stimulants for attentions disorders in 2011—more than twice as many were four years before.

If young men are acting out in paranoid and aggressive ways on the Internet, one significant cause is almost certainly that we have allowed countless boys and young men to be pumped full of powerful stimulants, often with no responsible diagnosis. What are we thinking? Or: Why aren’t we thinking? The overprescription of stimulants for attention disorders received a probing analysis, with plenty of data, in The New York Times in February 2013, which spurred a much-needed discussion; it’s been continued recently, as the suspension of Baltimore Orioles slugger Chris Davis has drawn long-overdue scrutiny to the abuse of Adderall in professional sports.

The causes of overprescription include teachers unwilling or incompetent to deal with a child’s normal restlessness; athletics and arts programs that have been reduced and recess time diminished (who wouldn’t be antsy?); parents knuckling under pressure from teachers and school administrators, as well as parents overzealous for their children’s success; a culture eager to find a quick drug fix for any human problem; and, behind it all, the long arm of the pharmaceutical industry, which has made massive profits from the construction of disease where life presents restlessness and normal human variety. I’m not saying that nobody needs these drugs, or that everyone will abuse them. But many who take stimulants do not need them; a significant proportion of those prescribed these meds will abuse them; and monitoring is laughable.

Shortly after he got out of a long rehab stint in another state, and when he was still more or less lucid, though already spiraling down, S wrote the following (a small fragment of a very long message that degenerates into paranoid aggression by the end):

I hope you don’t think I am the devil. You know the devil wears Prada though. It’s not that I want to see you near me. It’s that you have left me with all sorts of thoughts on how to see the world from the perspective of someone who is not anyone like me—I am always alone, always on my own, always about to be done forever. It’s just that you ladies taught me how to be good, even in my darkness, how to be a devil bitch (though in a non-violent, respectful way), how to not lose faith even though the odds are against that.

The odds, by now, are indeed very much against S. His humor and poetry have become hostages of his paranoia. And who knows? He might have been “done forever” anyway, for some other biological or psychological reason. But until that is proved, I hold the drug conglomerates accountable, because they overfed his normal hunger for competitive focus until it became an illness. I haven’t received a message from S for several months. Maybe he’s back in rehab. Maybe he’s dead.

In the end, the Internet is only a conduit. It may exacerbate, but does not cause, the underlying problems of hatred and harassment. Danielle Citron’s legal prescriptions can curb, but will not cure, the deformation of human beings that vexes our society. That sad fact should not discourage us from improving the law; but we must not imagine that law alone can fix the deeper problems that make law necessary.

Martha C. NussbaumMartha C. Nussbaum, the Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago Law School, is the author, most recently, of Creating Capabilities: The Human Development Approach.